At first, Tracey thought I was an FBI agent. I'd been bidding on his eBay auctions for weeks, purchasing CD recordings of local concerts that took place from the mid-'80s onward. Though clearly not official releases from the artists' catalogs, the CDs attracted me with professional packaging and promises of "A+ sound quality." Curiously, auction descriptions always referred to them as "imports," usually said to be from Italy or Australia. Once received, I was surprised by the excellent audio clarity and high production values, utilizing genuine silver discs rather than cheap CDRs and with silk-screened disc art, full-color inserts, photos, set lists, and sometimes even lyric sheets, foldouts, and booklets. It was obvious all the CDs had been auctioned by the same person using different eBay screen names -- the concerts all took place in San Diego, item descriptions were nearly identical, and all, it turned out, shipped from the same Clairemont Mesa PO box.
I e-mailed the seller to ask, "Hey, am I bidding on bootlegs or what?"
He replied, "The CDs I sell on eBay contain archival performances and are leftover inventory from overseas record labels which were forced out of business years ago...they are not bootlegs." This raised more questions -- if the CDs aren't bootlegs ("archival performances"?), why were the import labels "forced out of business"? And why were some CDs auctioning at $50, $60, even $80 or more? Once I convinced him I wasn't a fed, just a curious reporter, he agreed to a phone interview, on the assurance that his full name and eBay handles aren't disclosed.
Tracey says he's been sneaking recording equipment into hometown concerts for around 20 years. "I always use top-of-the-line gear; first high-bias cassettes and stereo mikes, then DAT, and now I can record to CD, minidisc, or direct to WAV or MP3 files on a laptop computer." He has around a thousand local concerts, plus a few hundred others recorded in other cities by himself or obtained in swaps with other tapers.
"I used to license my masters to overseas record companies, who could then legally release the shows on CD and sell them as imports to U.S. distributors without having to pay artist royalties. They were imported while there were still 'protection gap' loopholes in international copyright law. The CDs weren't pirated copies of authorized releases; these were previously unreleased concert recordings. It was completely legal to manufacture overseas and bring them into the country...the black market became kind of a gray market for a while."
Later research reveals that "protection gap" refers to a period, beginning around late 1990, in the early days of CD technology. The RIAA (Recording Industry Association of America) lobbied the U.S. government to avoid signing on to any international copyright agreements that gave intellectual property rights to the artists on their rosters, in order to enable the record companies to maintain control of their own releases. This, however, left the door open for the exploitation of unreleased material. U.S. concert bootleggers moved their operations overseas, where American artists received no copyright protection for live recordings.
In Southeast Asia and Eastern Europe, particularly Ukraine, record companies could legally release unauthorized concert recordings, so long as the tapes originated in another country. The CDs could then be exported to North America, thanks to the wording of U.S. Copyright Law, Title 17, Chapter 6 (Manufacturing Requirements and Importation), Section 602 (Infringing Importation of Copies or Phonorecords): "In a case where the copies or phonorecords were lawfully made, the United States Customs Service has no authority to prevent their importation."
"I didn't start as a bootlegger, not for money," says Tracey. "I used to trade [concerts] with other tapers and had a pretty big catalog with maybe a few hundred shows...and that was just a fraction of what I'd actually recorded! My list got around, and all these foreign companies started approaching me to get a hold of my master recordings, especially in Italy, Germany, and Australia, where they didn't give a shit about U.S. copyrights. All of a sudden, the labels were spinning off new labels just to put all my stuff out! Especially when they found out I had hundreds of concerts I never duped for anybody, anytime -- I had the only copy." He claimed his personal archive was the sole inspiration and content source for so many imprints that "At one point, I was probably responsible for starting up more record labels than David Geffen, Berry Gordy, and Suge Knight combined!"
He says he licensed concerts to the European companies rather than selling his masters outright, earning a one-time fee for exclusive rights to a performance. He won't specify the fee ("It depends on the popularity of the band or how historic the concert was...San Diego shows are a lot rarer than L.A. or New York"), but he speculates that he was one of the highest-paid suppliers. "Even before the protection gap, I already had hundreds of live tapes I recorded myself, on DAT, mostly from soundboard feeds. Complete shows with fully mixed sound, stuff that nobody in the world ever heard outside my headphones. There were bidding wars [among overseas labels] for my stuff, especially for '70s bands like Jethro Tull, Pink Floyd, Kiss, any of the FM guitar heroes like Robin Trower, Eric Clapton, that sort of thing."
A lot of money was changing hands. "The CD plants had minimum press runs of 1000 copies, so that would be the smallest release. The big labels, Great Dane [Italy] and Yellow Dog [Holland/Luxembourg], I'm sure they were doing 5000 units on most of their titles. Armando Curcio was a legitimate label [in Italy] that went into live CDs big-time in '91 with a bunch of Zappa concerts that sold better than his studio stuff. KTS [Kiss the Stone, in Italy] got rich from my Tori Amos concerts. Dieter Schubert [of Germany's Swingin' Pig] bought an office building with what he made off my Stones tapes."
So why license the concerts? Why not just start your own overseas label and keep the profits yourself? "I was kind of involved for a while," he says warily. "The laws get hinky when it comes to owning a business in another country. I guess you could say I bought into some labels, Oxygen, Moonraker, and a few others, to a lesser extent...it was basically my money and my tapes that started them, but I couldn't take money directly out of the accounts, the international banking was, uh, complicated."